In the withdrawn opinion, the majority focused on the common
sense definition of “drug trafficking offense.” The Moncrieffe
court reiterated the Supreme Court’s previous recognition that “the everyday
understanding of ‘trafficking’ . . . ordinarily means some sort of commercial
dealing.”Since the Georgia PWID statute
does not require remuneration, the Martinez-Lugo
majority in the withdrawn opinion found that it was not categorically a
DTO.

In the new opinion, the majority focuses on the elements of
a federal drug trafficking offense and compares them, rather than the Moncrieffe definition of “trafficking,”
to the Georgia PWID statute.Moncrieffe recognized that the elements
of Georgia PWID and PWID under the Controlled Substances Act (CSA) are the
same.The only reason Georgia PWID is
not an aggravated felony is that the distribution of a small amount of
marijuana for no remuneration is a misdemeanor under the CSA, and only CSA
felonies would be an aggravated felony.In contrast, § 2L1.2
does not require that an offense be a CSA felony in order to be a DTO.

The new Martinez-Lugo majority
opinion claims Martinez-Lugo never argued that the elements of Georgia PWID
differ from the elements of the generic, contemporary PWID offense but instead
argued that Moncrieffe controls.The majority “decline[s] to extend Moncrieffe to the different scheme
embodied in the Guidelines absent clear direction to do so. . . . Under a
straightforward application of the categorical approach, the Georgia offense
under which Martinez-Lugo was convicted has the same elements as the generic
possession with intent to distribute offense.”

Judge Dennis dissents.He interprets Moncrieffe as
making clear that the generic definition of a “trafficking” does not include
sharing a small amount of marijuana for no remuneration.The CSA recognizes this by treating such an
offense as a misdemeanor simple possession.Since the categorical approach requires a court to examine the least
culpable act punishable under a statute, which would include sharing a small
amount of marijuana for no remuneration, Georgia PWID is not a § 2L1.2 DTO.Judge Dennis also criticizes the “ironic and
illogical inconsistency” that, under the majority’s decision, Martinez-Lugo
receives a 16-level enhancement for a DTO but would not be subject to the
8-level enhancement for an aggravated felony.

Note:This is the
second time in three years that a Fifth Circuit panel initially resolved a § 2L1.2 DTO issue in favor of the
defendant and then withdrew the opinion and entered an opinion affirming the
enhancement.SeeUnited
States v. Rodriguez-Escareno,
700 F.3d 751, 753 (5th Cir. 2012)
(superseding prior opinion that held conspiracy to distribute meth was not a
DTO).